Nikita Floyd v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

STEELE HAYS, SPECIAL JUDGE

DIVISION II

NIKITA FLOYD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-55

OCTOBER 10, 2001

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NO. CR 2000-17]

HONORABLE JOHN NELSON FOGLEMAN, CIRCUIT JUDGE

AFFIRMED

While on probation for possessing a controlled substance, appellant was again arrested for a similar offense. The State moved to revoke his probation for possession of a controlled substance, associating with known law violators, failure to report to his probation officer or to pay fines and costs, and for battery on a fellow inmate.

At the revocation hearing appellant's probation was revoked and he was sentenced to forty-eight months, with suspended imposition of sentence for an additional sixty months. For reversal, appellant contends the written conditions of probation were not introduced in evidence at the revocation hearing. We affirm the trial court.

Arkansas Rule of Criminal Procedure 33.1 was amended on April 8, 1999, to providethat:

[i]n a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. . . The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required . . . will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.

Ark. R. Crim. P. 33.1 (2000). Appellant's revocation hearing was held some eighteen months after amended Rule 33.1 took effect. Appellant concedes he did not move for a directed verdict at the close of the revocation hearing, but he contends the hearing was before the cases of Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000), and Thompson v. State, 342 Ark. 365, 28 S.W.3d 280 (2000), were decided. Appellant's argument cannot be sustained, because, as Miner and Thompson demonstrate, whether Rule 33.1 applies is determined by the effective date of the rule rather than the date of the court's decision interpreting it. It follows that appellant's assertion of reversible error is barred on procedural grounds.

Affirmed.

Bird and Griffen, JJ., agree.